QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
B e f o r e :
MR JUSTICE FORBES
|THE QUEEN ON THE APPLICATION OF PILLAR|
|BOW STREET MAGISTRATES COURT||(DEFENDANT)|
|THE QUEEN ON THE APPLICATION OF PILLAR|
|THE PROVINCIAL COURT AT KLANGENFURT AUSTRIA||(DEFENDANT)|
|THE QUEEN ON THE APPLICATION OF PILLAR|
|THE PROVINCIAL COURT AT KLAGENFURT AND OTHERS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS C DOBBIN (for appeal) (instructed by TV EDWARDS, LONDON E1 4TP) appeared on behalf of the CLAIMANT
MR P CALDWELL (instructed by CPS London EC4M 7EX) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The first claimant ("Mrs Derksen") is a Dutch lady of considerable wealth. The second claimant is a Dutch company owned by her and used as her alter ego. In November 1997 Mrs Derksen met Mr Pillar, a jewellery dealer, at an antiques fair in Vienna and purchased some jewellery from him. They thereafter became close friends and numerous transactions in relation to jewellery in particular took place between them. Arising out of that relationship the claimants allege that they became victims of a series of frauds practised on them by Mr Pillar, either alone or in combination with Mrs Pillar and the third defendant ("Mr Pell") who was Mr Pillar's book-keeper. The Particulars of Claim narrate these frauds under seven different heads, namely,"
"On request of the public prosecutor's office of Klagenfurt, dated 3rd May 2004, and based on the contents of the complaint of the Criminal Investigation Department of the Provincial Police Headquarters (LGK) for Carinthia, dated 26th April 2004, judicial investigations have been carried on against the aforementioned person upon suspicion of serious professional fraud. During the building activities of the castle "Schloss Lolling", Christian Friedel in colloboration with the suspected submitted, at that time, to the injured person, Gertruda Derksen invoices increased by 30%. Furthermore, she was deceived with regard to the sale of the castle "Schloss Lolling" because of false statements concerning the owner as well as concerning the relationship of the suspected with the owner. Moreover, since 1997, in this context, false indications of origin have been given by the accused regarding the sale of 41 objects of antique furniture and a great number of jewellery and ornaments. Thereby, the person who suffered the loss was deceived as to the origin and by paying an excessive price she was injured to her property. According to the indication of the injured person, the damage sum amounts to approximately 2 million euro."
"(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
"If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it. And if the offence that it describes is not an extradition offence within the meaning of section 64 or 65, as the case may be, the judge must order the person's discharge: section 10(3). In either of these two situations there is no way back for the judicial authority of a category 1 territory."
In Vey v Office of the Public Prosecutor of the County Court of Montlucon, this court held that there must be clarity in order to meet the requirements of section 2(4). In paragraph 32 of that decision the court said this:
"In the instant case there is no clear statement whatever of the circumstances in which the Appellant is alleged to have committed the offence nor of her conduct. Those are requirements not only in s 2(4)(c) but in art 8(e) of the Framework Decision. The space in the warrant provided for describing the circumstances of the offence and the level of participation of the wanted person, is mainly taken up with an account of the arrest, questioning, confession and accusations of the Appellant's son."
At paragraph 35 of the same judgment the court said this:
"The absence of the information required leads to the conclusion that the warrant does not comply with s 2(4) of the 2003 Act. Although s 27 does not contain any specific reference to the requirements of s 2(3) or (4) it was not disputed but that a failure to comply with those requirements goes to the validity of the warrant. The validity of the warrant is the foundation for the judge's jurisdiction. In those circumstances both the District Judge and this court must consider any question of validity raised. If the warrant is not valid there is no jurisdiction to order extradition under the Act. In so saying I do not understand that I am expressing any principle which is controversial."
In Boudhiba Smith LJ, giving the leading judgment in this court, said as follows:
"The structure of the Act purports to set out exhaustively the procedure to be followed. Certain questions are to be considered at the initial hearing; then others at the extradition hearing. On the face of it, the adequacy of the warrant and compliance with the requirements of s 2 are not questions to be considered at either hearing. From their position in the Act, it appears that they are preliminary matters which should be considered before the warrant is given a certificate by the designated authority in this country pursuant to s 2(7). However, we were told that, prior to certification, the warrant is scrutinised by the Crown Prosecution Service, who may seek the advice of counsel. That is necessarily a one-sided process. If the warrant is certificated, the arrest is authorised. If the person arrested considers that the warrant is inadequate and his arrest unlawful, he can apply for habeas corpus. But, if he does not do that and the case proceeds against him, must it be taken that he has waived any objection to the validity of the warrant? On reflection, I think not. The warrant founds the jurisdiction of the appropriate judge. Even if no objection is taken to the validity of the warrant, it must be assumed that the court has considered and been satisfied as to its validity. Otherwise it could not have accepted jurisdiction. So, even though validity is not expressly mentioned in the Act as a question which must be determined, it must be treated as a question which has been answered. If, at any stage of the proceedings, the question of validity is raised, it calls jurisdiction into question. For that reason, despite the absence of an express power to consider compliance with s 2(3) or 2(4), I am satisfied that the appropriate judge is entitled to consider and determine whether, as a result of non-compliance with those provisions, he does not have jurisdiction. Further, the jurisdiction of this court is also dependent on the validity of the warrant. So, although s 27 permits this court to allow an appeal only if it is satisfied that the appropriate judge ought to have decided a question before him at the extradition hearing differently or would have decided it differently if he or she had considered the new issues or evidence raised on appeal, this court can still examine the validity of the warrant. If this court were to hold that the warrant did not comply with section 2, the proceedings would have been a nullity."
"Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal "pleading" vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:
'…the background to the relevant provisions made in the 2003 Act is an initiative of European law and …the proper administration of those provisions requires that fact to be borne firmly in mind… the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme..."